Case: 3:15-cv-00502 Document #: 1 Filed: 08/12/15 Page 1 of 13

IN THE UNITED STATES DISTRICT

COURT WESTERN DISTRICT OF
WISCONSIN
The Estate of TONY ROBINSON, JR.,
ex. rel. Personal Representative
ANDREA IRWIN,

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Plaintiff,
v.
The CITY OF MADISON, WISCONSIN,
and MADISON POLICE OFFICER
MATTHEW KENNY,
Defendants.

No. 3:15-CV-502

JURY TRIAL DEMANDED

COMPLAINT
NOW COMES Plaintiff, The ESTATE OF TONY ROBINSON, JR., by
personal representative ANDREA IRWIN, and complaining of Defendants
The CITY OF MADISON, WISCONSIN and MADISON POLICE OFFICER
MATTHEW KENNY, and states as follows:
Introduction
1.

Tony Robinson, Jr.a loving 19 year-old son, brother, and friend

should be alive today. Tony Robinson, Jr., fondly called Terrell, should be looking
forward to the next chapter of his life following high school. Tragically, and without
lawful justification, Tony Robinson, Jr.s life was taken through an act of
intentional homicidea violation of Terrells constitutional rightsby Madison
Police Department Officer Matthew Kenny.
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2.

Because of his status as a police officer, Defendant Kenny has not been

held accountable for his actions. Instead, despite the cries of a grieving community,
the authorities, including the City of Madison, have endorsed Defendant Kennys
actionsan act of deliberate indifference to the senseless and unlawful killing of
Tony Robinson, Jr., and others, at the hands of the Madison Police Department.
3.

This action, brought pursuant to 42 U.S.C. 1983, seeks some

measure of redress for the wrongful, unjustified actions of Officer Kenny and the
Madison Police Department. Those actions have left a family and community
irreparably harmed, and without other recourse.
4.

In short, while nothing can ever bring Tony Robinson, Jr. backand

no form of redress can ever be truly adequatethis action seeks to hold accountable
those responsible for the violation of constitutional rights of not only Tony
Robinson, Jr. but as well as others harmed by the Defendants actions.
JURISDICTION AND VENUE
5.

This Court has jurisdiction of the action pursuant to

28 U.S.C. 1331.
6.

Venue is proper under 28 U.S.C. 1391(b). On information and

belief, all or most of the parties reside in Dane County, and the events giving
rise to the claims asserted herein all occurred within this district.
PARTIES
7.

Plaintiff, the Estate of Tony Robinson, Jr., constitutes the legal

interests of Tony Robinson, Jr. and has a Personal Representative, Andrea Irwin,
the mother of the mother of Tony Robinson, Jr.
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8.

The City of Madison is a Wisconsin municipal corporation, which

operates the Madison Police Department (the MPD or Department), which in

turn sets city-wide policy for the conduct of police officers employed by the
Department.
9.

Defendant Officer Matthew Kenny is Madison police officer who, at all

times relevant to this action, was acting under color of law and within the scope of
his employment as a Madison police officer.
FACTUAL ALLEGATIONS
The Unjustified Killing of Tony Robinson
10.

On March 6, 2015, Tony Robinson spent some time at the home

of friends who lived in the second floor apartment at 1125 Williamson St.
11.

There, Robinson began acting strangely. For example, he

seemed to be speaking to his father, who was not present at the home.
Robinson was very emotional and friends described him as not himself.
12.

After an hour, Robinsons friends left the apartment to go to a

high-school basketball game. Tony Robinsons odd behavior continued and he

ran through traffic on Williamson Street, prompting one friend to call the
Madison Police Department.
13.

After getting the call, MPD dispatch called for Defendant Kenny

(3 David 8 on the dispatch) and Madison Police Officer John Christian (3

David 7 on the dispatch) to check on the well being of the individual who
had been acting erratically on Williamson. A third officer, Sergeant Jamar
Gary, was also dispatched to the scene.

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14.

Dispatch sent Defendant Kenny and Officer Christian to 1125

Williamson Street. Dispatch reported that the officers should be looking for a
male black with light skin in a tan jacket and jeans, who was outside
yelling and jumping in front of cars.
15.

Dispatch further reported that the individual was 19 years of

age, named Tony Robinson and that he was unarmed.

16.

Dispatch reported to Defendant Kenny, and the other officers,

that the residents of 1125 Williamson Street who had initially called the
Department had left the scene. Defendant Kenny specifically asked
whether the 911 caller was still in the area and was informed that the
caller was not going to be remaining on scene.
17.

Defendant Kenny claims that dispatch reported that Tony

Robinson had taken some type of mind altering substance.

18.

At some point, Defendant Kenny, and the other officers, was

informed that Tony Robinson had no shirt on.

19.

Defendant Kenny was informed by dispatch that Robinson had

been at the gas station across Williamson street, had another interaction
with a different individual, at a restaurant, but had returned across the
street.
20.

Defendant Kenny, and the other officers, were specifically told

that Tony Robinson had returned to the apartment that they had been told
was left vacantthe upstairs apartment at 1125 Williamson Street.
21.

At no point did dispatch ever indicate that the initial 911

callerwho told the police he was leavinghad returned to 1125 Williamson

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Street.
22.

Dispatch reported that Robinson, and only Robinson, had

returned to the second floor apartment.

23.

Defendant Kenny arrived at 1125 Williamson just seconds

before Officer Christian and Sergeant Gary. Defendant Kenny pulled into the
driveway of the home without using his sirens or lights.
24.

Despite the fact he knew Christian and Gary were almost there,

Defendant Kenny decided to go into the upstairs apartment without waiting

for backup.
25.

Though Defendant Kenny later claimed that he heard a possible

disturbance inside the home, Tony Robinson was the only person inside the
upstairs apartment at 1125 Williamston Street.
26.

Within seconds of entering the stairwell, Officer Kenny used his

gun to fire seven shots at Tony Robinson. In so doing, Defendant Kenny fired
a first volley of three shots, but then stopped to pick up his flashlight, which
he had dropped. Defendant Kenny then took a step back and fired three more
shots into Tony Robinson. Then, Defendant Kenny took another step back,
raised his gun again, and fired a seventh shot.
27.

Defendant Kennys use of deadly force was unjustified. Defendant

Kenny knew that Tony Robinson was 19 years old, that he was unarmed, had been
experiencing mental health issues, and had been told several times that the other
individuals at 1125 Williamson Street had left the scene.
28.

At no point during Tony Robinsons encounter with Defendant Kenny

did Robinson take any action that would justify the use of deadly force.
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29.

At no point during Mr. Robinsons encounter with Defendant Kenny

did Robinson pose an imminent threat of death or serious bodily harm sufficient to
justify the use of deadly force by Defendant Kenny.
30.

Tony Robinson died from the multiple, unnecessary gunshot wounds

he suffered at the hands of Defendant Kenny.

Defendant Kenny Lies to Investigators,
Attempting to Cover-Up His Unlawful Acts
31.

Investigators who looked into the shootingto determine whether

Defendant Kenny should be criminally chargeddid not conduct an adequate or

proper investigation. Instead, investigators contaminated the entire process to
allow Defendant Kenny the opportunity to concoct a sequence of events that would
make it seem as if his unjustified use of deadly force was actually justified.
32.

For example, before making a statement, Defendant Kennywith his

attorneywas permitted to return to 1125 Williamson and do a walkthrough of

the scene and examine the stairwell where he shot Tony Robinson. This
walkthrough was pursuant to the practices and policies of the Department but
was completely unjustified.
33.

Likewise, Defendant Kennys squad camera recorded the doorway of

the home and whatever could be seen of the incident from that angle. And, Sgt.
Garys microphone, from inside of his vest, was able to pick up audio of the
shooting. Shockingly, Defendant Kenny was allowed to review the video and
audioagain, alone with his attorneybefore giving his version of events to
investigators.
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34.

Nonetheless, even when Defendant Kenny finally told his story to

investigators, his account conflicted with the audio and video recordings.
35.

For instance, Defendant Kenny maintains that the first 3 (of the 7)

shots he fired were fairly close to the top of the stairs. Documentary evidence
reveals, however, that all of the shots were fired from at or near the bottom of the
stairwell.
36.

Likewise, as another lie to attempt to avoid criminal charges and

make it seem as if the use of deadly force against Tony Robinson was justified,
Defendant Kenny claimed that Tony Robinson continued to aggress towards him
after the first three shots, and again after Defendant Kenny fired the second volley
of three shots. Thus, Defendant Kenny maintains that Tony Robinson aggressed
towards him after he had shot Tony Robinson 6 times. This scenario, implausible
on its face, conflicts with the audio and video evidence, and reveals that this
account is false.
37.

Defendant Kennys use of deadly force against Tony Robinson was

unjustified , unconstitutional, and unlawful.

Pursuant to Madisons Unconstitutional Polices,
The Department Exonerates Defendant Kenny
38.

Following the Shooting of Tony Robinson, the City purported to

conduct its own internal investigation of the shooting. The result of this
investigation was a finding that Officer Kenny was exonerated.
39.

The Citys investigation into the shooting of Tony Robinson is evidence

of the Citys continued deliberate indifference to the use of unconstitutional deadly

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force against unarmed citizens. Rather than examine the evidence, and
inconsistencies between Defendant Kennys account and the audio and video
footage, the investigators accepted wholesale Defendant Kennys version of events.
40.

Indeed, the City did not even speak to Defendant Kenny in the course

of its investigation. Instead, policymakers for the City publically spoke out
endorsing Defendant Kennys actions.
41.

The City of Madison, which purported to conduct its own internal

investigation of the matter absolved Defendant Kenny of any wrongdoing, thereby

sanctioning and condoning his misconduct.
42.

This was not the first time the City of Madison failed to discipline

MPD officers who have used deadly force against unarmed individuals without
justificcation. In fact, the MPD has had a history of accepting and encouraging such
conduct. Indeed, as reported by local media, Officers in the City of Madison has
killed at least 5 unarmed citizens since 2012 but failed to discipline or re-train its
officers.
43.

These failures to train and discipline, in the face of widespread de-

facto policies allowing the use of excessive deadly force, cause, are deliberately
indifferent to, and even encourage the use of unconstitutional deadly force by
members of the Department.
44.

The Departments treatment of Officer Stephen Heimsness is just but

one example of these polices, practices, procedures, and failures to train and
discipline. In 2006, Officer Heimsness brutally beat James Bauer, a patron of a bar
to which he was dispatched. Following an internal investigation, the Department
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refused to impose any discipline or train him on the use of force, and the City put
even put Officer Heimsness back on the street. Then, in 2012, as a result of the
Departments failures to train and discipline, Officer Heimsness shot and killed
Paul Heenan, an unarmed man in his own neighborhood, who was being helped
home by his neighbor.
45.

Mr. Hennan was killed less than a 10-minute walk from the place

where Defendant Kenny killed Tony Robinson.

46.

Taking place less than 3 years before the shooting of Tony Robinson,

Jr., the killing of Mr. Heenan is strikingly similar to the shooting of Tony
Robinsonan MPD officer shot and killed an unarmed citizen within seconds of
arriving to the scene of an incident where an individual was mentally impaired.
47.

Rather than train, discipline, or in any way seek to prevent another

shooting of an unarmed individual, the City failed to adequately punish Officer

Heimsness, and failed to take steps to ensure the shooting of another unarmed
citizen would not occur again. The City was therefore deliberately indifferent to the
use of unjustified deadly force by MPD officers against unarmed individuals,
including Tony Robinson, Jr. and others.
48.

In sum, Madison Police Departments handling of Officers Heimsness

and Kennyby failing to discipline or train them and then commending them
following the killing of unarmed individualsdemonstrates how the police
department has not only tolerated, through a lack of discipline, but has actually
encouraged, officers uses of excessive force as a matter of Department policy.

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Plaintiffs Damages
49.

The Defendants actions imposed substantial harm upon Tony

Robinson, Jr. during the period of time after which he was shot 7 times by
Defendant Kenny until he ultimately passed away. The amount of excruciating
pain Tony Robinson, Jr. felt during those final moments is unquantifiable.
50.

In addition, just a teenager, Tony Robinson, Jr. lost the opportunity

to live the rest of his life, to grow up, to marry, and to even have children of his
own. These damages are tragic and substantial.
Count I - 42 U.S.C. 1983
Violation of Constitutional Rights
51.

Each of the Paragraphs in this Complaint is incorporated as if

restated fully herein.

52.

As described in the preceding paragraphs, the conduct of the

Defendant Kenny toward Tony Robinson, Jr. constituted a violation of Robinsons

constitutional rights, including but not limited to those under the Fourth and
Fourteenth Amendments of the United States Constitution.
53.

The misconduct described in this Count was objectively unreasonable

and undertaken with willfulness and reckless indifference to the rights of others.
54.

The misconduct described in this Count was undertaken pursuant to

the policy and practice of the City of Madison, such that Defendant City of Madison
is also liable, in that:

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a. As a matter of both policy and practice, the City of Madison encourages,

and is thereby the moving force behind, the very type of misconduct at
issue here by failing to adequately train, supervise, control and discipline
its officers such that its failure to do so manifests deliberate indifference;
b. As a matter of both policy and practice, the City of Madison facilitates
the very type of misconduct at issue here by failing to adequately
investigate, punish, and discipline prior instances of similar misconduct,
thereby leading Madison police officers to believe their actions will never
be meaningfully scrutinized and, in that way, directly encouraging
future uses of excessive deadly force such as those Plaintiff complains of;
c. Generally, as a matter of widespread practice so prevalent as to comprise
municipal policy, officers of the Madison Police Department abuse
citizens in a manner similar to that alleged by Tony Robinson, Jr. in this
Count on a regular basis, yet the Madison Police Department
investigates officer misconduct and makes findings of wrongdoing in a
disproportionately small number of cases;
d. The Madison Police Departments failure to meaningfully investigate
police misconduct and to control its officers is further illustrated by its
handling of Officer Kennys shooting. Officer Kenny, was not disciplined
for this first death and was back on full duty soon after the incident.
e. In fact, the MPD encouraged Kennys conduct by previously rewarding
him with commendations for aggressive police tactics.

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55.

As a result of the City of Madisons policies and practices, and the

unjustified and unreasonable conduct of the Defendant Kenny, Plaintiff has

suffered injuries, including death and severe emotional distress.
Count IIMunicipal Indemnification
56.

Each of the Paragraphs of this Complaint is incorporated as if fully

stated herein.
57.

Wisconsin law, Wisc. Stat. 895.46, requires public entities to pay any

tort judgment for damages for which employees are liable within the scope of their
employment activities.
58.

During all times relevant to this complaint, Defendant Officer Kenny

was an employee of the Madison Police Department, who acted within the scope of
his employment in committing the acts described herein.
WHEREFORE, Plaintiffs respectfully request that this Court enter
judgment in their favor and against Defendants, CITY OF MADISON,
WISCONSIN, and MADISON POLICE OFFICER MATTHEW KENNY, awarding
compensatory damages and attorneys fees, as well as punitive damages against
MATTHEW KENNY, and any other relief this Court deems just and appropriate.

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JURY DEMAND
Plaintiffs hereby demands a trial by jury pursuant to Federal Rule of
Civil Procedure 38(b) on all issues so triable.
RESPECTFULLY SUBMITTED,
s/David B. Owens
One of Plaintiffs Attorneys

Jon Loevy
David B. Owens
LOEVY & LOEVY
312 North May, Suite 100
Chicago, IL 60607
(312) 243-5900

Application for pro hac vice admission forthcoming.

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